ARK.] LONGINorn v. LoNGINom. 1001 The deCree of: this court on- the first appeal has become final, and it is now beyond the power -either of this court or the chancery court to correct it. We adjudicated this question on a trial de novo, and this adjudication, even though erroneous; is final, and the motion for rehearing will therefore ' be 'overruled. IANGINc yrri y. LOivoiNOTTI.. • Opinion delivered November 30, 1925. 1.' DrioRcE—m rwr oF CONDONATION.—While one spouse may condone'conduct of the other, such .condonation does not deprive the aggrieved Spouse, of the right to a .divorce on account of the subsequent misconduct of the offending:spouse, and .such conduct will revive the right to divorce for the condoned offense. . 2. iDIVORCH—CONDONATION—SUBSEQUENT MISCONDUCT.—Where a husband cendoned miscrinduet of his wife 'with a parrimour; there was an implied agreement that she would net afford -just cause for him to suspect that such misconduct had not ceased, as would -' -be the case where clandestine telephone communications continued between her and her paramour under fictitious names; 3. .• • PIVORCH--CUSTODY OF CHILD.—Under Acts 1921, p. 317, providing that wheri father and mother are living apart there shall be no iirefererice in awarding cuStody of the children, arid that: the welfare of the children must be considered first in disposing of their custody, the award to • the mother of a fourteen-year old girl who was hostile to the father will not be disturbed. 4. DIVORCEALLOWANCE FOR CHILD'S SUPPORT.—Where a -husband is awarded a divorce against his wife on the groUnd of aduliery, the court's allowance fOr support of the child living with the, wife should be for the exclusive use of the child. Appeal from Garland Chancery Court ; J. P. Iien-derson, 'Chancellor ; reversed in part. . Martin, TV oo,tton & Martin, for appellant. Murphy ce . Wood; for appellee. SMITH, J . This is an action by appellant . against appellee for a divorce. Appellant asked the divorce upon the ground of adultery, and alleged that his wife had for many. years been unduly intimate with a man named Sam
1 1002 LONGINOTTI-V. LONGINOTTI: [169 Davis.. Appellee denied the allegations of .appellant's Complaint, pleaded condonation, and by way of cross-bill prayed a- divorce on account of- cruelty and personal indignities. She prayed the court to award her the custody of their only child, a girl now fourteen years old, and that she have alimony and an allowance for the support of the child. We have before us a record of unusual size—nearly two thousand pages ; in fact, there is incorporated in the present record a large portion of the record of the case of Davis v. Davis, 163 Ark. 263, which was also a large tT11.. • of Davis v. Davis, supra. Appellee was-the woman forming triangle in that case, and Davis is the man who fills that position in the present one: We . did not set out ihe testanony in ,the'former . case, because we said it involved purely an issue of fact and would serv . e no useful purpose . as a precedent. What we there , said is equally true here. -- The chancellor prepared an opinion, which was incorporated in the decree . of the 'court below. In 'this opinion the chancellor annoUnced his finding of fact that 4c , h party had been gUilty of 'suCh conclnct aS to afford ti16--other a statutory ground for divorce, that of appellee being the personal indignities .suffered . at the hands of appellant. But the court found that there had been a ...reconciliation and condonation, and that each party had ,. i thereafter breached the terms of the agreement Whereby the reconciliation had been effected, bfit . the court declined find which party- had first offended in this respect. Without reviewing the testimony which leads us to ()lir conclusion, we announce oUr conclusion to be that the tekimony warranted a divorce to appellant on account of 1 the relation between appellee and Davi's. ApPellant and appellee are both members of the Catholic Church, and' a reconciliation betwden them was P effected through theOffices of a priest Of that faith. Appellee had braught snit against appellant . for divorce, and had alleged cruel treatment and tlersonal indignities as .. a ground 'therefor.
ARK.] LONGINOTTI v.. LONGINOTTI. 1003 This . suit was . dismissed . when the,. reconciliation . was effected. At , that. time: the suit in, the case . of Davis .v. PaviS. was pending, and..appellant was subpoenaed as a witness in that case, and in . his., deposition :he., produced letters from Davis te appelleetowhicbwe referred in our , opinion , in that case . of Pavis- ,swpra...: Appellant . had, told appellee that these . ,.letters.,.had been,.destroyed and. would be forgotten, .a,s 'far as it was possible •t42,.forget, • but .appellant , haci . . 49 t . destroyed them, and, when appellee ,discoveredthis : faCt,.she importuned appellant not to .produce them inthe trial of _the Davis diyorce case.; Appellant disregarded the„ entreaty. .of his wife and produced . the letters, when . his deposition. was . taken, and, as might have , been euected, the : harmony of . their Telation was destroyed... . *. . • . The testimony shows. n;mch7 in:the conduct. of appellant,. both before and ,after the, reconciliation, which can-snot be approved. lie , .struck .his wife on . several, occasions, And. once after . the -reconciliation, scalded . ..her with .a kettle. of •hot _water,. Appellant testified that his wife poured. the . water . on, , herself,. M an ,.attempt to pour it on shim ; but we , do, not credit his,version of tbiS incident. tie abused .his wife to . their infant daughter and appears by his :conduct_ ,to have estranged , the..affectiOns: . of the ..testified in _her mother 's, behalf, and was a partisan,witnesS.. _Appellant caused his wife to:be, spied . He had . 4, telephone connection„ made with the Wire leading . to his home, which : enabled him to. listen in to -conversations. had between-his . wife and persons who Called her telephone. . Appellant . told his uspiCions to his associates and when he secured any ' evidence wbich he regarded-as confirming..his . suspicions,. he . poured out .his, wrath on his. wife without . ,spending , any, of it . on- -the man whom. he characterized . 0..s her: paramour. The failUre .of appellant to destroY . the- Davis ;letter's .pursuant to bis agreement io do. , so,; and his statenient that he , bad . done. so,..and his production 'of theni . iii the , Davis .case, was ,an act of treachery, . which ' .. weighed hea:Crily with the chancellor in. ' refusing aPPellant:;a diVerce; aS . is
1004 LONGINOTTI v. LONGINOTTI. [169 reflected iby the opinion of the chancellor, and this con-dud, together with the continued reproaches of appellee by appellant, and his abuse of.her in the presence of their child, as well as other persons, and the scalding of appel-lee after the reconciliation, led the Chancellor to the conclusion that both 'parties were so far to 'blame that affirmative relief should mit be granted to either. We have concluded, however, that, while there is much in'the conduct of appellant which cannot be exeused, there was much in the testimony to extenuate it. The"reconciliation occurred in September; 1922, arid annellant_testified_that_he_snon_hee,arnp_leonvinestd _That appellee was in commumcation with — Davis, and he attributes his displays of temper to that fact: After the separation of Davis and his wife had become permanent, Davis ostensibly removed -from Hot Springs, where he'had lông reSided, to Pine -Bluff; where he brought suit for divorce against his 'wife. Davis moVed to Pine Muff in APtil, 1922, and returned to Hot Springs in January, '1923, and it is certain that during this interiral many conversations occurred oVer the telephone 'between Davis in Pirie Bluff and apPellee in Hot Springs. The managei of the telephone company in • Pine Bhiff produced the recerch of that:office showing the number of calls from Pine Bluff calling telephone 1719 in Hot Springs, 'this being the number of the telephone in appellee's home, There were .4 of these"calls in April, 11 in May,-12 in june, 6 in Jrily, 5 in August, 4 in Septem-ber, 3 in actober, 2 in November, 4 in December and 2 'in JamiarY. A recapitulation of the telephone records showed a total of 53 callS, consuming 473 minutes, and a charge of $71.50 for the messages. One of these conversations continned for twenty-eight minutes, and a number of them lasted -more than twenty Minutes, and the average length of the conversation wa g nearly, nine minutes. None of these calls were made in the riaine ofiDavis. On the 'contrary, we think it quite apparent that a fie-titions name was employed by him. Neither appellee nor Davis had any eiplanation to 'offer in regard to these
ARK.] LONGINOTTI V. LONGINOTTI. 1005 calls except-to deny that there had been More -than three Or four conversations between them during the 'time Davis resided in Pine Bluff, but the telephone records did not show that any call had ever been put in by l either for the .other,--so that a fictitious name Must•liave been employed On the oecasionS when the : admitted conVersa-; tions took place. All the Calls appear to have been from Pine Bluff except the one on :JulY 2, from: . phone 1719, for Davis at a hotel- in Pine Bluff. This was a reVerse message and Was paid for by Davis in Pine Bluff: 'The Call was in 'the name of Mrs. Sam Davis for Mr.' Sam Davis, but; as the telephone 'records showed that the call was from phone 1719, it .appears . certain that appellee had used the narn.e of Davis '-wife in putting in the call, arid had'done•thiS tO-conceal her identity. = - It is insisted that nci illicit relation between appellee and Davis was show i after the reconciliation. 'Indeed, it is insisted that none was sho Wn at any time. Wethink; however, that this 'clandestine communicatiOn should be interpreted in the light of the prior relationship between Davis and appellee. The tact that it was-clandestine and conducted tinder fictitious names adds to its-significance; and we think jnstified appellant in concluding that aPpeb-lee was not keeping faith-with him, and : had not ceased her relations with: DaviS, as she promisedi'to do when her preVions conduct Was condoned. • ; •The lawis well settled that either' 'spouse may condone conduct of the other which, but for the cOndonation, Would; entitle the innocent spouse to ;diVorce; : But it is eqUally as'well settled that condonation does not depri-e the aggrieved spouse of thcright to a divorce on Account of the subsequent misconduet Of the - offending ;sponse. On the 'cOnttary; 'silbseqnent misConduct will generally operate 'to reViVe the right to la divorCe for the condoned offense. • At '§ 177 of the chaPter on DiVorce j and Separation in 9 It.' C: L. page 384; it is said: "It is welP settled that condOnation of past rnatrinionial offenses is-irapliedly COnditioned iiPon' the future 'good behaVior Of *the Offend-
Sh6 Lonmamhz 1TheINUTD. [162 iug.epou., turd it fells,. that, if after tondoniction the often,ec are repeated, the right to malm the condoned offense a ground for divorce revive. To constitute a revival of the condoned often., the orthaling spmeee need not be guilty. the same character of off.. an that menc cloned; any /misconduct is sufficient which indicates that the eood etm000eena acceptedgood faith ao upon the ...nal. conditions implied, in Bishop on Marriage; Dhow. and Separation, at 6336 of velumeb, page 162, it in mid: "Forgiveness of injury, 'especially in respense to repentance, is deemed in law as well no in morals rommendable And when a nmrried party, knowing the other to have committed an off.. nuthotheing divorce, and hay ing the ability to prove it, continuen or rerier. the eonnubial intermit., a forgiveness thereof, teehniesdly termed eondonation, nonetheively preeumed. But to proveut scandal in the eommunity, and especially to induce injured consorts condone DID sort of wrong instead of proeeeding for a divorce, tim law attach. to the condonation the con. Mash that neither nhe like matrimonial aveong, nor any other of a nod authorizing divorce, nor yet .y conjugal unkindness though pro/panning leen far, shall he of/omitted by the forgiven pm.. On a violation oil tim condi. lien, the original right of divorce revives Sueh is the doctrine The applications of it will somewhat vary with tho see, with the nature of the particular offense, and with the other cireumstances, Appellant tostified that when the rewmcilialion was effected between himeelf and appellee through tho intervention.' the priest, there me an express underetanding that appethe should. immethately and oompletely terminate all rotations of any kind with Davis, and thie fact not denied. It is only cumerted that 0 hal m .e e or eompromising relation wan over resumed, But, an we have said, we think appellant was warranted in concluding to the contrary. There was pot only an exp.ee agreement that appellee's relations with Davis /Mould 0enee, Out there was inn,layr 'an implied
ARK.] LONGINOTTI V. LONGINOTTI. 1007 agreement that she would hot afford him any just cause to suspect that these relations had not ceased. We think appellant is not to be barred by his condonation under the circumstances' of the case from prosecuting this action. It follows, therefore, that the decree refusing . appellant a divorce will be reversed, and a decree , for a divorce in his favor will be entered. We have been much concerned about the appropriate order to make in regard to the custody and support of the child. The child—a girl—is now in the high school, and we think her partisanship for her mother and her hostilitylo her father is such that. 'we should not change the custody of the child, which the Court below awarded to appellee, the mother. It is but too often true in cases like this that innocent children are the real sufferers. The act of March 8, 1921 (acts .1921, page 317) provides_ that when the father and mother of children are living apart, there shall be no preference between them in regard to the custody of their children, and that the welfare of the children must 'be considered first in disposing of their custody. We have concluded that the action of the court below in regard to the custody of • the child should not be disturbed. The court below assessed all the costs against appellant, and allowed a fee for appellee's attorney, which is not contested, and these orders are affirmed. The court alsci fixed an allowance of $50 per month to be paid appellee for the support of the child. We think appellant should not be required to pay anything to appellee, and the allowance made by the court will be decreed to be for the exclusive use of the child. • We concur in the finding of the court below that both parties were at fault, but we think appellee was the greater and the first offender, and we have concluded, under the case made, that a decree of divorce should be awarded appellant, and it will be so ordered.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.